Olaf Osica*
The year 2012 was supposed to be a watershed, marking a profound and lasting breakthrough in relations between Ukraine and the Euro-pean Union, and paving the way for Ukraine’s gradual integration with the EU. Instead, 2012 marked the onset of a strategic pause be-tween the two, foreclosing the prospects of Ukraine’s approximation to the EU.
The hopes for a paradigmatic shift in EU–Ukraine relations were root-ed in the fact that after three years of negotiations, the EU and Ukraine initialled the Association Agreement (AA) in March 2012, and the Deep and Comprehensive Free Trade Area Agreement (DCFTA) in July 2012. Both agreements open up prospects for Ukraine’s gradual and sectorial integration with the EU. Whereas AA includes a set of political goals to be met by Ukraine in the area of democratic free-doms, the scope of the DCFTA is by far more extensive than that of a typical free trade agreement. Firstly, it envisages a complete liberali-zation of trade through lifting customs tariffs, import quotas and other barriers (legal, technical and procedural) to trade. The agreement also stipulates that Kiev will liberalize regulations on investments and ser-vices. Secondly, by signing it, Ukraine would undertake to adopt and implement EU laws, norms and standards concerning all trade under the agreement.1
If signed and ratified, the AA and DCFTA together would constitute the backbone of the EU–Ukraine relations for at least a decade. The DCFTA would provide Ukraine access to the market of 500 million consumers valued to 17.6 trillion USD, compared to the domestic Ukrainian market of 50 million consumers and a mere 165 billion USD. It would improve conditions for Ukrainian companies operating in the EU, through a common legislative, technical and procedural framework for trade and investment and solution of trade disputes. In
* This chapter, an extended version of the 2012 seminar presentation, is based on materials published by the OSW (http://www.osw.waw.pl/en/publikacje/tagi/Ukraine).
1 Cf. R. Sadowski, ‘The prospects for the EU–Ukraine free trade agreement’, OSW Com-mentary No 94, October 2012.
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the long-term perspective, this would also facilitate the dialogue on visa liberalization and access to the EU labour and educational market for ordinary Ukrainian citizens.
That is not to say that the process would be an easy and a smooth one, or that there are no pitfalls. The arrangement does not imply fully-fledged Ukrainian membership in the EU at the end of the process, as this is always a political decision and depends on the overall integra-tion context. It would, however, test Ukraine’s commitment to Euro-pean integration, and the EU’s readiness to offer accession to those that meet membership requirements. Importantly, this has been the only concrete and realistic foundation for Ukraine’s integration with Europe: rather, there is no other and there will not be any other pro-posal of this kind.
Given this comprehensive arrangement, pessimism would seem out of place. However, pessimism emerges from the fact that despite the suc-cess of the AA and DCFTA negotiations, the political dialogue be-tween the EU and Ukraine has stalled to the extent that it may hamper final ratification of both documents and freeze EU–Ukraine coopera-tion for years to come. Whether the agreements will be signed and implemented is still an open question, and depends on favourable po-litical conditions. On the one hand, the repression imposed by the Kiev government on its political opponents (including the disputed conviction of former Prime Minister Yulia Tymoshenko) has pro-voked criticism from the EU. The Union now refuses to sign if the government in Kiev continues to violate democratic principles by ap-plying selective justice. On the other hand, Russia has become in-creasingly active in its efforts to pull Ukraine into the integration pro-jects that it has initiated – the Customs Union and the Eurasian Eco-nomic Community. Moscow has effective instruments for exerting its will, not least the dependence of the Ukrainian economy on supplies of Russian oil and gas and on exports to the internal Russian market.
The parliamentary elections of 28 October 2012 did not help to clarify the overall picture. The report prepared jointly by the OSCE/ODIHR, the OSCE Parliamentary Assembly, the Parliamentary Assembly of the Council of Europe, the European Parliament and the NATO Par-liamentary Assembly contains a positive evaluation of the events on election day, but the period preceding it and the counting of the votes in the electoral commissions were criticized.2 The report’s main points of criticism against the government were an unfair and biased elec-toral campaign, primarily the failure to ensure equal opportunities for all candidates; the excessive use of administrative resources to
2 Post-election interim report 29 October–6 November 2012, published 9 November 2012, at http://www.osce.org/odihr/elections/97077
Why Ukraine is more than Yanukovych 41 41
mote the government’s own candidates; the lack of pluralism in the media; the jailing of Yulia Tymoshenko and Yuriy Lutsenko, prevent-ing them from participatprevent-ing in the elections; and the non-transparent counting process. The report did not contain any direct suggestions that these elections should be acknowledged as free and fair, or any assessment concerning the impact of the irregularities on the final electoral result. In general, these elections have been described as a step backward in comparison to those held in 2007.3
The conclusions contained in reports from other institutions are large-ly similar to those of the OSCE. The International Civil Society’s Election Observation Mission to Ukraine reported procedural irregu-larities, but said that ‘the incidents did not appear to have a nature and a scope that could have seriously distorted the election results.’4 In turn, the report from the well-reputed Ukrainian organization, the Committee of Voters of Ukraine, deemed that, despite numerous ir-regularities in the period preceding Election Day, ‘they were not of a mass scale and systematic nature’.5 The head of the ENEMO mission stated that the elections showed a regression in respect of democratic standards, in comparison to those in 2007, and cited various forms of abuse of power from the government as the most serious violations.6 On the other hand, however, as Andrew Wilson of ECFR noted, there were encouraging signs of democratic vitality.7 The political competi-tion was real, although curtailed by unequal access to mass media and the tricks of political technologists. The opposition parties (United Opposition, Ukrainian Democratic Alliance for Reforms and Freedom Party) gathered more votes in the proportional elections than the rul-ing Party of Regions. The number of parties represented in the Verkhovna Rada (Parliament) promises more political debates than fewer, and more importantly, it shows that Ukrainian voters are not afraid to vote against the government. The total vote for the opposition parties (United Opposition Batkivshchyna [Fatherland], UDAR [Blow]
and Svoboda [Freedom]) in the proportional elections was higher than that for the ruling party, which won 30 per cent compared to the oppo-sition’s 49.9 per cent. The Party of Regions won in single-mandate
3 Cf. T. Olszanski, ‘After the parliamentary elections in Ukraine: a tough victory for the Party of Regions’, OSW Eastweek, 07.11.2012.
4 Preliminary statement on findings and conclusions international civil society election observation mission to Ukraine Kiev, 29 October 2012,
7 A. Wilson, ‘The EU and Ukraine after the 2012 elections’, ECFR policy memo, Novem-ber 2012.
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constituencies,8 but even here, it did not enjoy the success it had ex-pected. Compared with the 2007 election, it lost nearly 2 million vot-ers (see Table 1); and the 187 to 189 seats it can count on do not give it a simple majority (which would require 226 votes).
Indeed, the elections clearly show that Ukraine’s political system is far from being consolidated in an authoritarian fashion, and that the government has to accept the reality of political pluralism and compe-tition. In this, Ukraine stands out from Belarus or Russia, where the genuine opposition groupings are not allowed to take part in any elec-tions, and thus are driven onto the streets. On the other hand, Ukraine may be sliding from democracy to some soft version of authoritarian-ism, and notable problems persist.
The freedom and independence of the mass media are still se-cure by post-Soviet standards, but do not live up to European norms. The freedom and independence of the media in Ukraine have been regularly restricted over the past three years. Following a period of relative freedom in 2005–2010, the scope of direct and indirect government control of the press has increased. The press in Ukraine has partially lost its position as a watchdog regarding the government and politi-cians in general, and cannot act as a reliable source of infor-mation to the public.9
Selective justice which aims at side-lining political rivals brings Ukraine closer to Russia and Belarus, but not to its western neighbours like Poland. The Tymoshenko verdict has accentuated this problem.
Endemic corruption and lack of an independent and effective judiciary system and police make small and medium-sized en-terprises, both Ukrainian and foreign ones, helpless in defend-ing their property rights and businesses.
Finally, Ukraine is sliding towards an authoritarian consolida-tion of state power under President Viktor Yanukovych. The problem lies not so much in the fact of the presidential system of power, a systemic feature of most post-Soviet states, but in the policy of Yanukovych (and his ‘Family’) of taking over control of the institutions of the state and its major economic assets.
Given the deteriorating state of Ukrainian democracy, it matters less that the EU accepts the elections result as meeting basic democratic standards. The major question remains whether the EU will sign and
8 The elections were held under a mixed system: 225 seats allotted in proportion to national lists, and 225 chosen in single-mandate constituencies.
9 Cf. T. Iwanski, ‘The press and freedom of speech in Ukraine ahead of parliamentary elec-tions’, OSW Commentary, September 2012.
Why Ukraine is more than Yanukovych 43 43
ratify the AA and DCFTA – and the outcome here will send a political message to Kiev. Continuing cooperation on the basis of the AA might be interpreted by the Ukrainian authorities as not only full ac-ceptance of their policies, but also a reward for ‘good performance’.
By contrast, suspending the political dialogue and postponing the AA and DCFTA ad calendas graecas might result in less leverage on Kiev and – in the longer term – acceptance of Ukraine’s drift towards a fully-fledged authoritarian state. The choices confronting the EU in its Ukrainian policy must be thoroughly scrutinized before any deci-sions are taken.
In the present situation, a myopic domestic political agenda has side-lined the long-term state interests of Ukraine. From the early days of the Tymoshenko trial in June 2011, EU leaders sent an unequivocal message to Yanukovych: they did not regard the proceedings as fair, and her imprisonment would put at risk the signing of the AA and DCFTA.10 The trials revealed that Tymoshenko was charged with abuse of powers as Ukraine's acting prime minister at the end of 2008 because she had issued instructions to officials negotiating the gas contract with Gazprom that were in violation of the relevant law. This in turn, according to the Criminal Code, resulted in ‘particularly size-able’ losses. The link between the formal (procedural) mistakes with the content of the contract as it was eventually signed remains unclear, and the trial, to judge from the available materials, was unable to prove that Tymoshenko had in fact broken the law. This indicates that the trial was political in nature, intended to show that, in accepting unfavourable terms for the deliveries and transit of natural gas to Ukraine for the period from 2009 to 2019, Yulia Tymoshenko had acted to the detriment of state security. However, that allegation has not formally been made.11
For months, Ukrainian authorities appeared to understand what the direct consequences of the trial would be, and promised to find a legal solution that would solve the problem, by introducing new clauses in the Penalty Code that would distinguish between the abuse of the ad-ministrative power and criminal acts. But in October 2011, Tymo-shenko was convicted and sentenced to seven years’ imprisonment. In addition, the court ruled that she was barred from holding public of-fice for three years, and was obliged to pay damages to Naftogaz amounting to 1.5 billion hryvna (approximately USD 187 million).
10 A. Kwiatkowska, A. Ciechnowicz, T. Iwanski and R. Sadowski, ‘The crisis in EU/Ukraine relations surrounding Tymoshenko’, OSW Eastweek, May 2012.
11 S. Matuszak and T. Olszanski, ‘Yulia Tymoshenko sentenced’, OSW Eastweek, October 2012, available at: http://www.osw.waw.pl/en/publikacje/eastweek/2011-10-12/yulia-tymoshenko-sentenced.
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The sentence sparked immediate and sharp criticism from Brussels as well as from individual EU countries. European politicians saw the court's decision as politically motivated and a violation of all demo-cratic standards. The head of EU diplomacy, Catherine Ashton, stated the verdict would affect bilateral EU–Ukraine relations, including the Association Agreement.12 At the same time, the Commissioner for Enlargement, Stefan Füle, indicated that he was counting on Tymo-shenko’s rapid release through changes to Ukraine’s Criminal Code.13 The escalating criticism of the Ukrainian government has led to the political isolation of President Yanukovych and his government. The summit of Central European states scheduled for May 2012 in Yalta was cancelled, as 14 of the 19 presidents refused to participate; more-over, a host of European leaders announced their boycott of the Ukrainian part of European Soccer Championship games in 2012.
These symbolic gestures confirm Ukraine’s decreasing importance in the policy of European countries, which are no longer interested in improving dialogue with the government in Kiev.
Yanukovych’s political tactics of having his cake and eating it too – sentencing Tymoshenko for her alleged crime without jeopardizing Ukraine’s relations with the EU – has proven self-defeating. It reflects a constant problem faced by Ukrainian policymakers: that of being overconfident in one’s power and overestimating the importance of one’s position. Indeed, we could say that Ukraine is now getting what it deserves: the politicization of the judiciary system and the abuse of administrative resources in violation of the rules of the democratic game must lead to a halt in the process of EU integration. The EU has no other option but to be consistent in its policies – otherwise it will undermine its own position not only towards Ukraine, but also the en-tire set of standards it seeks to bring to the EU neighbourhood.
Clearly, however, this game has one important flaw. By focusing on the Ukrainian authorities, and on Yanukovych himself as the main in-stigator of the strategy, it reduces the EU–Ukraine relationship to a dialogue between political elites, leaving no room for society at large.
This does not mean that Ukrainians do not share the EU criticism. On the contrary, an independent mass media, an efficient and independent judiciary and democratic rules of the political game are the bedrock of a modern and free society. Ukrainian society and public opinion are as disappointed with the current state of affairs as is the EU, and see the EU as a potential instigator of change and improvement.
12 Ashton was first quoted that the AA should proceed. For Ashton’s statements, see:
http://en.rian.ru/world/20111013/167634985.html and http://commonspace.eu/eng/links/6/id923. [Editor’s comment]
13 S. Matuszak and T. Olszanski, op. cit.
Why Ukraine is more than Yanukovych 45 45
After more than three years under President Viktor Yanukovych and the Party of Regions, Ukrainian society has little confidence in the state, its main institutions and its politicians, regardless of their politi-cal affiliation.14 Polls taken after two and a half years with Yanu-kovych show that none of the key state institutions, with the exception of the army, is trusted by more than 22 per cent of the Ukrainian peo-ple. Although President Viktor Yanukovych enjoys the highest public confidence levels among all politicians in the ruling camp, only 22 per cent of the respondents say that they trust the president; while as many as 66% do not trust him. Yanukovych performs badly even in the eastern parts of the country, where both he and his Party of Regions have traditionally enjoyed the highest level of public confidence: only 30 per cent of the respondents in eastern Ukraine say they trust the president, while as many as 57 per cent do not. Public support for the decisions taken by Yanukovych during his presidency has also been waning. Back in April 2010 – two months after Yanukovych took of-fice – 37 per cent of the Ukrainians supported his policies; by Decem-ber 2011 this figure had dropped to just 8 per cent. A similar decrease over the same period was observed in the public’s support for both the government and parliament.15
Ukrainian society has become increasingly alienated from political life.16 As many as 82 per cent of Ukrainians believe that they have no real influence over what happens in the country, while over half of the respondents are uninterested in or irritated by the work of the govern-ment and the president. The polls also show that only 5 per cent of respondents respect those who hold power, and as little as 3 per cent are positively disposed towards the members of the ruling camp. Fur-thermore, the number of people who consider themselves to be happy has dropped for the first time in 10 years and for the first time under the rule of Viktor Yanukovych; the figure for 2012 stood at 53 per cent (down from 63 per cent for 2010).
On the other hand, the negative assessment of the work of the ruling party has not improved most Ukrainians’ view of the opposition. Also this side of the political spectrum suffers from low levels of public trust, although the figures are slightly better than those for the presi-dent and the government. Polls suggest that 24 per cent of the elec-torate trusts the opposition (while 53 per cent do not), with somewhat more positive figures coming from western Ukraine (a difference of 5 per cent).17 Overall support for opposition leaders has been growing,
14 See Kiev International Institute of Sociology, February 2012.
http://kiis.com.ua/ua/news/view-152.html
15 Cf. T. Iwanski, ‘Public feeling in Ukraine ahead of the parliamentary election’, OSW Commentary, No 89.
16 See http://kiis.com.ua/ua/news/view-149.html 17 T. Iwanski, op. cit.
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albeit slowly. For example, between April 2010 and December 2011, public support for Yulia Tymoshenko increased from 14 per cent to 15 per cent (and support for one of the key opposition figures, Arseny Yatsenyuk, rose from 11 per cent to 13 per cent in the same period).
The high level of distrust of Ukrainian politicians can be clearly seen from a survey published by the weekly Zerkalo Nedeli indicating that Ukrainians are more likely to trust a complete stranger than a politi-cian.18 Meanwhile, Ukrainian society is most willing to trust
The high level of distrust of Ukrainian politicians can be clearly seen from a survey published by the weekly Zerkalo Nedeli indicating that Ukrainians are more likely to trust a complete stranger than a politi-cian.18 Meanwhile, Ukrainian society is most willing to trust